Law enforcement commentators likely celebrated over two seemingly pro-police judicial decisions rendered in May 2014. The Oklahoma Supreme Court in Smith v. City of Stillwater (2014 OK 42) held that a police officer in pursuit owes no duty of care to the fleeing suspect. The U.S. Supreme Court in Plumhoff v. Rickard (135 S. Ct 1156) held that police officers did not violate the Fourth Amendment when they fired multiple shots at a moving vehicle occupied by a driver and passenger trying to flee from them. Both were killed by the officers’ gunfire.
However, upon closer scrutiny neither court decision provides blanket approval for police officers in either vehicle pursuits or use of force by firearms. Rather, the courts are guarded in their decisions by limiting them only to the particular facts of the cases. This judicial restraint leaves open the possibility that future cases might come to a different conclusion where the facts are substantially different.
A. Police Pursuits in Oklahoma
Stillwater police officers attempted to stop Smith who was allegedly drag racing on his motorcycle. The chase ensued but ended when Smith encountered a “T” intersection and fatally crashed. Smith’s estate filed a wrongful death suit alleging that the City’s law enforcement officers owed a duty of care to the decedent created by the pursuit policies of the department and the language of 47 O.S. § 11-106 which specifically provides that “The driver of an authorized emergency vehicle …when engaged in the pursuit of an actual or suspected violator of the law…” is granted specific exemptions to the “Rules of the Road.” However, 47 O.S. §11-106(E) provides:
E. The provisions of this section shall not
relieve the driver of an authorized emergency
vehicle from the duty to drive with due re-
guard for the safety of all persons, nor shall
such provisions protect the driver from the
consequences of reckless disregard for the
safety of others.i
The City asserted that the Governmental Tort Claims Act provided immunity from liability when the decision to engage in a pursuit was discretionary citing 51 O.S. §155(5) as follows:
The state or political subdivision shall not be
liable if a loss or claim results from:
5. Performance of or failure to exercise or perform any act or service which is in the discretion of the state or political subdivision or its employees.
The Court rejected this assertion stating that this applied only to the formulation of a policy. It held that the negligent performance of a law enforcement function is not shielded from immunity under the GTCA.” ii
Since this was the first time this issue had ever been raised, the Court then focused on Title 47 O.S. §11-106 to determine whether the law enforcement officers while in pursuit owe a duty of care to the fleeing suspect. Smith argued the legislative intent was that the law enforcement officers in pursuit must regard the safety of “all” persons whether bystanders or fleeing suspects. The Court rejected this argument calling it “absurd.” The Court noted that it was the unlawful actions of the fleeing suspect which created the safety risk rather than the law enforcement officer’s decision to engage in a pursuit.
It is worth noting that the Court’s decision was not unanimous. Several justices concluded that the fleeing violator was owed a duty of care by law enforcement officers under 47 O.S. § 11-106 (E). In their opinion when the legislature incorporated the word “all” in the statute, it included the party who was allegedly involved in criminal activity when injured in a vehicular pursuit.
B. Use of Deadly Force
The U.S. Supreme Court by a 9-0 opinion in Plumhoff held that police officers did not violate the Fourth Amendment when they fired 15 shots at a moving vehicle occupied by a driver and passenger trying to flee from them. Plaintiff’s Fourth Amendment claim asserted that the multiple shots constituted excessive force in violation of the Constitution. The Court stated that there was no clearly established law which would have provided a basis for determining the police officers used excessive force by shooting so many rounds into the fleeing vehicle.
The incident started when police officers stopped Rickard’s vehicle at night because it had only one headlight. After the vehicle was stopped, the police officer saw beer in the vehicle, yet Rickard denied he had been drinking. He failed to produce a driver’s license, then sped away from the scene. A pursuit commenced at speeds in excess of 100 mph, and for over five minutes during which time he passed more than twenty-four other vehicles which ended up with Rickard’s vehicle colliding with several police vehicles. His vehicle was almost pinned in by several other police units when he continued to accelerate in an attempt to flee. Three shots were fired into the vehicle when he put his vehicle into reverse in a 180-degree arc and nearly struck another police officer when another twelve shots were fired into Rickard’s vehicle. Rickard lost control of his vehicle and crashed into a nearby building. Both Rickard and his passenger died as a result of gunshot wounds and injuries from the crash.
What was unique about this case was that the episode was caught on videotape which the Justices viewed as part of the evidence. It was clear that Rickard posed an imminent threat to the lives of other motorists who might have been present, and to the police officers involved in the pursuit. The Court noted that during a 10-second span of time when the shots were fired, Rickard never stopped his attempt to flee from the police officers.
It is worth noting that the Court did not give a green light to officers to fire their weapons during a pursuit. Rather it cautioned that its opinion might have been different if Rickard had ceased his attempt to flee after the initial three shots, and the officers continued to fire the additional shots into his vehicle in an attempt to incapacitate him from further flight.
Both cases can be viewed as victories for law enforcement. However, it should be noted that there is a split in the Oklahoma Supreme Court regarding the interpretation of 47 § 11-106(E) as to whether the police owe a duty of care to a person fleeing from arrest while driving a vehicle. Although the U.S. Supreme Court was unanimous in its decision in upholding the use of deadly force during a police pursuit, the Court issued a warning. It hinted that a different fact situation may have caused the Court to come to a different decision where deadly force was used unnecessarily when a person who had been fleeing from the police no longer posed a viable threat to the public or the police officers.
iThe same language is found at 47 O.S. 11-405 (B).
iiState ex rel. Oklahoma Dept. of Public Safety v. Gurich, 2010 OK 56, ¶10 (citing Salazar v. City of Oklahoma City, 1999 OK 20, ¶27, 976 P.2d 1056).
Courts Uphold Police Pursuits and Use of Deadly Force Yet Caution Police Officers was written by Stephen E. Reel, OMAG General Counsel. You may contact the author at firstname.lastname@example.org. The information in this bulletin in intended solely for general informational purposes and should not be construed as or used as a substitute for legal advice or legal opinions with respect to specific situations, since such advice requires an evaluation of precise factual circumstances by an attorney. OMAG does not represent or endorse any group, site or product that may be mentioned in this article.